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1993 DIGILAW 514 (GUJ)

DILAWAR GULABBHAI SHAIKH v. COMMISSIONER OF POLICE, ahmedabad CITY

1993-11-05

S.D.SHAH, S.M.SONI

body1993
SHAH, J. ( 1 ) THE petitioner-detenu has by this petition questioned the legality and validity of order of detention dated 13-5-1993 passed by the Commissioner of Police, Ahmedabad in exercise of powers conferred upon him under Sec. 3 (2) of Gujarat Prevention of Anti-Social Activities Act, 1985. Along with the order of detention grounds of detention duly formulated under Sec. 9 (1) of the said Act are supplied to the detenu. ( 2 ) FROM the grounds of detention supplied to the detenu it becomes clear that the detenu is detained as "bootlegger" within the meaning of term as defined by Sec. 2 (b) of the said Act, and as he is involved in as many as four cases which are said to have been registered at Kagdapith Police Station and Gaekwad Police Station. Three out of said four cases are pending investigation while one is pending trial in the Court. Over and above involvement of the detenu in the aforesaid cases the detaining authority has placed reliance upon the statements of witnesses who have desired to be anonymous and their claim of anonymity is accepted in exercise of powers conferred upon the authority under Sec. 9 (2) of the said Act. On the aforesaid material, order of detention is passed. ( 3 ) AT the hearing of this petition Miss D. R. Kachhawah, learned advocate for detenu has assailed the continued detention of the detenu on the ground that the right of the detenu guaranteed under Art. 22 (5) of the Constitution of India of getting the representation effectively and expeditiously considered is denied inasmuch as representation made by the detenu to the detaining authority dated 24-5-1993 is considered as back as 17/07/1993 when the communication is received by the petitioner from the detaining authority. She further submitted that there is no reasonable explanation forthcoming from the respondents for the aforesaid delay of about one month and 22 days in disposing of the representation sent by the detenu. She has further submitted that the representation is admittedly received by the Office of the Commissioner of police, Ahmedabad on the very next day, i e. on 25/05/1993 and therefore, the detaining authority is required to explain the delay caused in considering the representation. She has further submitted that the representation is admittedly received by the Office of the Commissioner of police, Ahmedabad on the very next day, i e. on 25/05/1993 and therefore, the detaining authority is required to explain the delay caused in considering the representation. In the absence of any reasonably acceptable explanation the delay in considering the representation must prove fatal to the continued detention of the detenu and, therefore, the detenu should be ordered to be released forthwith, submits the learned Advocate for petitioner. ( 4 ) MR. K. P. Raval, learned A. P. P. has stoutly resisted the aforesaid submission by submitting that despite instructions given in the grounds of detention to address the representation to the detaining authority at the address mentioned in the grounds of detention, the representation was addressed at a wrong address and, therefore, the same did not reach the detaining authority immediately. He has submitted that in the grounds of detention the detenu is required to send his representation to the detaining authority at the following address :"the Police Commissioner, ahmedabad City, office of the Police Commissioner (P. C. B.) shahibaug, Ahmedabad". ( 5 ) THE aforesaid address is the correct address on which the representation ought to have been addressed. In the present case the representation is addressed at the following address"the Police Commissioner, ahmedabad City, office of the Police Commissioner, shahibaug, Ahmedabad". ( 6 ) THE words " (P. C. B.)" which ought to have been mentioned after the "office of the Police Commissioner" are found to be missing and since those words are not mentioned it has gone altogether to a different branch of the office of Police Commissioner. He has submitted that this representation was received by the Zone-11 of the office of the Police commissioner, and it was directed to Zone-VI on 27/05/1993. Zone- vi is the office of the Dy. Police Commissioner who in his turn directed the said representation to Police Superintendent, J-Division on 28/05/1993 and the same was received by the Police Superintendent, j-Division on that very day and what steps are taken on such representation thereafter by the office of the Police Superintendent, J-Division are not disclosed to us but it appears that the representation has been lying in the cold-storage upto 8/07/1993 when it was sent to Dy. Commissioner of Police, Zone-VI. Commissioner of Police, Zone-VI. Thereafter, the same has further travelled to the office of the Police Commissioner, P. C. B. branch on 14/07/1993 and ultimately it came to be considered and rejected. The period spent in travel of said representation from the office of Police Commissioner, Ahmedabad to the Commissioner himself is beyond comprehension of any reasonable individual. If such lethargy prevailing in the bureaucracy is permitted to prevail and if such inaction is condoned, the very objective of expeditious consideration of representation by the concerned authority will be frustrated. It falls beyond our comprehension as to how a representation which is clearly meant for detaining authority, namely, the Police Commissioner, Ahmedabad would take a period of more than 52 days in reaching the table of Police Commissioner when it was very much received by the office of the Police Commissioner. The total callousness, indifference and negligence is exhibited by the office of the Police Superintendent, J-Division inasmuch as that office has not attended to the representation from 28th May to 8/07/1993. What has happened to the representation in the said office during the aforesaid period is not disclosed to this Court nor is Mr. Raval in a position to state anything as to why and how the said representation kept lying in cold-storage in the office of the police Superintendent, J-Division who has no authority whatsoever to deal with the representation of a PASA detenu. The aforesaid callousness, inaction and negligence exhibited by all the officials of the office of the Police Commissioner, ahmedabad not only deserves denunciation at the hands of this Court but speaks ill of the manner and method in which sensitive communication like representation of a PASA detenu is dealt with. We are, in this connection, reminded of the observations made by the Supreme Court in the case of Harish pahwa v. State of U. P. , reported in AIR 1981 SC 1126 . It was a case where there was delay of about 7 days in considering the representation of the detenu and said delay was also frowned upon by the Supreme Court in the following words"again, we fail to understand why the representation had to travel from table to table for six days before reaching the Chief Minister who was the only authority to decide the representation. We may make it clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. We would emphasise that it is the duty of the State to proceed to determine representations of the character above mentioned with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. This not having been done n the present case we have no option but to declare the detention unconstitutional. " ( 7 ) THE detenu under Preventive Detention Law is conferred a valuable right of making representation to the competent authority. When such representation is made by detenu and received by the detaining authority there is obligation on the competent authority to consider the same as expeditiously as possible. The reasonable despatch and expedition in disposing of the representation of a detenu is now a well accepted principle and time and again the Courts have invalidated the detention of a detenu for unexplained and unreasonable delay caused in considering the representation. The present one is a case where not only there is unexplained and unreasonable delay of around 52 days in considering the representation of the detenu but the way in which the representation is tossed from pillar to post so as not to be attended to by the responsible officer for a long period of 52 days exhibits total unawareness of constitutional obligation under which a detaining authority acts. To say the least the conduct of the office of the Police Commissioner, Ahmedabad in dealing with representation which is reached the office of the Police Commissioner on the very next day is reprehensible and makes a travesty of Constitutional obligation and we very strongly condemn and denounce the delay caused in considering the representation. To say the least the conduct of the office of the Police Commissioner, Ahmedabad in dealing with representation which is reached the office of the Police Commissioner on the very next day is reprehensible and makes a travesty of Constitutional obligation and we very strongly condemn and denounce the delay caused in considering the representation. Our denunciation of delay caused in considering the representation must necessarily result into declaring the continued detention of detenu to be illegal, nail and void. ( 8 ) IN the result, petition succeeds. The continued detention of the detenu is declared to be illegal, null and void and the order of detention passed against the detenu is hereby quashed and set aside. Rule is made absolute. The third respondent is directed to release the detenu forthwith unless his presence is required in connection with any other offence. ( 9 ) THE Registrar is directed to send the copy of this judgment to the commissioner of Police, Ahmedabad City, Shahibaug with a direction to look into the judgment and to take necessary corrective steps to see to it that such representations addressed to the office of the Commissioner of Police, Shahibaug, ahmedabad are placed before him at the earliest opportunity without tossing such representations from table to table and unnecessarily delaying consideration thereof by the Commissioner of Police. .